Jian Bo Lin v. Holder

FILED
United States Court of Appeals
Tenth Circuit
June 25, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JIAN BO LIN,
Petitioner,
v. No. 08-9563
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General, *
Respondent.
ORDER AND JUDGMENT **
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
Jian Bo Lin petitions for review of an order of the Board of Immigration
Appeals (BIA or Board) affirming an Immigration Judge’s (IJ) denial of his
applications for asylum, restriction on removal, and protection under the
*
Pursuant to Fed. R. App. P. 43(c)(2) Eric H. Holder, Jr. is substituted as
United States Attorney General for Michael B. Mukasey.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
§ 1252(a) and we deny the petition for review.
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Background
Mr. Lin is a native and citizen of China. He was arrested after illegally
entering the United States from Mexico in September 2005. After removal
proceedings were commenced, petitioner conceded removability and requested
asylum, restriction on removal, and CAT protection. Petitioner alleged
persecution based on his political opinions related to China’s population control
policies.
Mr. Lin’s Application and Testimony
In his asylum application and his testimony, Mr. Lin described the
circumstances leading him to leave China. He stated that he was married with
one daughter born in June 2003. He explained that he and his wife decided in
October 2004 that they would try to have a second child and his wife became
pregnant in February 2005. A neighbor reported his wife’s pregnancy to the Birth
Control Department in April. Another neighbor who worked in that department
warned him of the report, and petitioner immediately fled with his wife and
daughter to hide at his aunt’s house in the city.
According to Mr. Lin, he and his wife were returning from shopping at
10:00 a.m. on May 20, 2005, when they saw representatives of the Birth Control
Department (specifically five men and two women) at his aunt’s doorway. The
officials approached and told petitioner and his wife that they had violated the
birth control policy. They pleaded with the officials that having a second baby
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was not against the law when their first child was a girl. The birth control
officials encircled Mr. Lin and his wife. He shouted to her to run, but she was
unable to get away. The officials shoved him to the ground and slapped his face.
His wife sat down on the ground and refused to move, but the officials dragged
her away as she screamed for help. Petitioner testified that these events happened
outside on the asphalt road.
The birth control officials drove petitioner’s wife to a hospital where she
was forced to have an abortion. Meanwhile, two officials detained petitioner in
another car outside of the hospital. About five hours later Mr. Lin was told to
leave the car. He ran to the hospital and found his wife, who was laying on a bed
and crying very loudly. He and his wife then walked about 10 minutes back to
his aunt’s house. Petitioner initially testified that they returned to their own home
that same day. He later said that they stayed at his aunt’s house one or two more
days, but then he testified again that they returned home immediately.
Mr. Lin stated that the government fined them $10,000 for violating the
birth control policy, but that they refused to pay because they did not have the
money and they felt they had paid enough by losing their child. He said that the
Birth Control Department continued to harass them when they did not pay. But
he also testified that, after notice of the fine was hand delivered to them at their
home, they immediately fled to hide at a friend’s house. That friend suggested
that petitioner should go to the United States where he would be free to have
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children. His friend helped him get a fake passport and he borrowed money from
relatives and friends in order to pay a smuggler to assist him in getting a visa and
flights to Mexico. He left China in August 2005, while his wife and child stayed
behind. He explained that his wife was still recovering from the abortion and his
daughter was too small to make the trip. According to Mr. Lin, his wife and
daughter are still living in hiding at his friend’s house in China.
Documentary Evidence
Mr. Lin submitted a number of documents, including birth certificates;
photo identity cards; a marriage certificate; the household register for his
mother’s house (where he lived with his wife and daughter); his wife’s Woman
Checkup For Pregnancy card; a May 20, 2005, hospital record indicating his wife
underwent abortion surgery for an early pregnancy; a Birth Control Violation Fine
Ticket for an early birth; a notice of a fine for giving birth over the quota limit; a
letter from petitioner’s friend who worked in the Birth Control Department; and
an affidavit from his wife.
Cross-examination of Mr. Lin
The government cross-examined Mr. Lin regarding his claim that he and his
wife were unaware, before she was pregnant the second time, that under the birth
control policy there was a waiting period for having a second child after a
first-born daughter. The government’s attorney pointed out that his wife stated in
her affidavit that they “didn’t want to be restricted by the birth control policy,”
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which she described as “after one child, insert a birth control ring; after two
children, undergo sterilization. If the first child is a girl, can apply to have one
more child after five years.” Admin. R. at 349. Mr. Lin’s wife also stated in her
affidavit that a woman was required to have quarterly checkups, “[m]ainly to
check if a woman still has the birth control ring or if she is illegally pregnant.”
Id. And his wife indicated that she was puzzled how a neighbor “knew that [she]
was planning on an illegal pregnancy.” Id. Mr. Lin responded only that he had
not read his wife’s affidavit and therefore had no knowledge of what she said. He
continued to assert that neither of them was aware of the waiting period until her
second pregnancy. But he admitted that his wife was following the quarterly
checkup rule until she became pregnant with a second child.
The government’s attorney then asked Mr. Lin about his wife having her
birth control ring removed. He had testified that they went to a private hospital
where she saw a male doctor, and he provided that doctor’s name. In contrast, his
wife stated in her affidavit that she “hired a private female doctor to take out
[her] birth control ring.” Id. The government’s attorney also asked Mr. Lin why
his wife’s affidavit seemed to indicate that the birth control officials arrested
them inside the aunt’s house, while he testified that it happened outside. He said
only that his wife fainted during the confrontation and “[s]he didn’t know what’s
going on” or “she forgot.” Id. at 205, 206. When asked why the ticket and notice
documents listed two different reasons for the $10,000 fine, the former indicating
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“[e]arly birth,” id. at 338, and the latter saying “for giving birth over the quota
limit,” id. at 341, Mr. Lin responded that he didn’t know. Petitioner also had no
explanation why his wife’s affidavit states that he left home alone after they
received notice of the fine, while he testified that his wife and daughter went into
hiding with him.
On cross examination Mr. Lin was also asked about identification numbers
appearing on several of the documents that he submitted. He initially stated that
the Chinese personal identification number is similar to a Social Security number,
and he testified clearly that this number cannot be changed. But when confronted
with evidence that his and his wife’s personal identification numbers were not
identical in the various documents, petitioner stated, “Because the I.D. card was
renewed after 10 years and the new card has a different number.” Id. at 238. He
later asserted that a personal identification number will change each time a
document is renewed.
Immigration Judge’s Decision
Following Mr. Lin’s testimony, the IJ stated that petitioner’s application
bordered on being frivolous based on the many inconsistencies between his
testimony and the other evidence. In an oral decision the IJ found that petitioner
was not credible, stating:
In fact, the Court feels that the [petitioner’s] application is full of
inconsistencies, that his testimony today was inconsistent in many aspects
with his application and with the affidavit of others, including his wife and
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his friend, that are a part of the file. Further, the Court finds that there
[are] inconsistencies and problems in the documents themselves in that the
identification number of the [petitioner] and his wife change on several of
the documents in the file which have been shown to the Court and are a part
of the filing before the Court.
Id. at 82-83.
The IJ then listed eight specific reasons why he found Mr. Lin not credible:
(1) his demeanor—specifically his failure to show any emotion while describing
his wife’s forced abortion, in contrast with his emotional response to
cross-examination about inconsistencies in the evidence; (2) the inconsistencies
between petitioner’s testimony and his wife’s affidavit regarding: (i) whether
they were aware of the waiting period for having a second child; (ii) who
removed her birth control ring; (iii) where the encounter with Birth Control
Department officials took place; and (iv) who went into hiding after they received
notice of the fine; (3) the discrepancy between the notice and the ticket
documents regarding the nature of their violation of the birth control policy;
(4) the internal inconsistency in Mr. Lin’s testimony regarding how long they
stayed at his aunt’s house after his wife’s forced abortion; and (5) the
inconsistencies in personal identification numbers in the various documents that
petitioner submitted, as well as in his testimony regarding whether personal
identification numbers ever change.
Having found Mr. Lin’s testimony “to be incredible, unbelievable, and
implausible,” id. at 89, the IJ held that he failed to meet his burden of proof to
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show he was entitled to the relief requested in his applications. The IJ further
found “that there is absolutely no evidence in the record that the [petitioner] will
be tortured if he is returned to China.” Id. Finally, the IJ denied petitioner’s
application for voluntary departure.
BIA Appeal
The BIA dismissed Mr. Lin’s appeal, affirming the IJ’s decision that he
lacked credibility “for the reasons specified in the Immigration Judge’s decision,”
Id. at 2, and holding that petitioner was therefore not entitled to the relief he
requested. The BIA also affirmed the IJ’s holding that petitioner failed to show
that it is more likely than not that he would be tortured if he returns to China.
Finally, the Board rejected Mr. Lin’s claim that faulty translation of his testimony
violated his due process rights. The Board emphasized that (1) neither petitioner
nor his attorney requested a different interpreter during the hearing, (2) he failed
to explain why the allegedly faulty translation occurred only during
cross-examination, and (3) he pointed to no aspect of the IJ’s decision that
reflected an incorrect translation. The BIA noted that petitioner based his
argument solely on a comment by the IJ in his oral decision that, at one point
during cross-examination, petitioner appeared not to understand the interpreter.
But Mr. Lin failed to acknowledge the IJ’s finding that his demeanor otherwise
reflected that he was having trouble answering the questions, rather than
difficulty understanding the interpreter.
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Scope and Standards of Review
Because a single member of the BIA affirmed the IJ’s decision in a brief
order, see 8 C.F.R. § 1003.1(e)(5), “we will not affirm on grounds raised in the IJ
decision unless they are relied upon by the BIA in its affirmance,” Ismaiel v.
Mukasey, 516 F.3d 1198, 1205 (10th Cir. 2008) (quotation omitted). “But when
seeking to understand the grounds provided by the BIA, we are not precluded
from consulting the IJ’s more complete explanation of those same grounds.”
Ismaiel, 516 F.3d at 1205 (quotation omitted).
We review the BIA’s legal determinations de novo. See Lockett v. INS,
245 F.3d 1126, 1128 (10th Cir. 2001). “The agency’s findings of fact are
conclusive unless the record demonstrates that ‘any reasonable adjudicator would
be compelled to conclude to the contrary.’” Ismaiel, 516 F.3d at 1204 (quoting
8 U.S.C. § 1252(b)(4)(B)) (further quotation omitted). “We may not weigh the
evidence, and we will not question the immigration judge’s or BIA’s credibility
determinations as long as they are substantially reasonable.” Woldemeskel v. INS,
257 F.3d 1185, 1192 (10th Cir. 2001). But “the IJ must give specific, cogent
reasons for disbelieving [an alien’s testimony].” Ismaiel, 516 F.3d at 1205(quotation omitted). Finally, we do not have jurisdiction to review issues not
raised in Mr. Lin’s appeal to the BIA. See Rivera-Zurita v. INS, 946 F.2d 118,
120 n.2 (10th Cir. 1991) (“The failure to raise an issue on appeal to the Board
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constitutes failure to exhaust administrative remedies with respect to that question
and deprives the Court of Appeals of jurisdiction to hear the matter.”).
Discussion
Mr. Lin’s Credibility
Mr. Lin challenges the BIA’s affirmance of the IJ’s adverse credibility
determination. Because the Board affirmed this finding for the reasons specified
in the IJ’s decision, we may look to the IJ’s more complete explanation of the
same grounds. See Ismaiel, 516 F.3d at 1205.
Petitioner challenges the BIA’s reliance on discrepancies in the personal
identification numbers in the documents. He argues that it was not reasonable for
the IJ to require corroboration of his explanation that the identification numbers
changed when documents were renewed. But petitioner ignores the IJ’s finding
that his explanation was not credible because it contradicted his previous,
unambiguous testimony that personal identification numbers never change. See
8 U.S.C. 1158(b)(1)(B)(iii) (providing “a trier of fact may base a credibility
determination on . . . the internal consistency of [a] statement”). The IJ was not
required to resolve that contradiction by simply accepting Mr. Lin’s belated
explanation, without any corroboration, for the identification number
discrepancies.
Mr. Lin also argues that the BIA erred in relying on discrepancies in the
terms used in the documents to describe the nature of his violation of the birth
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control policy. The Board noted that one document refers to an abortion
performed for “Early pregnancy,” Admin. R. at 335, another says that the type of
violation was “Early birth,” id. at 338, and a third document refers to “the fine for
giving birth over the quota limit,” id. at 341. Petitioner testified that he did not
know why varying terms were used in the different documents. He contends,
however, that the Board has no knowledge, nor is there any evidence in the
record, whether these phrases are truly inconsistent, or are used interchangeably
by Chinese officials in this context. We agree. An IJ’s credibility finding “may
not be based upon speculation, conjecture, or unsupported personal opinion.”
Elzour v. Ashcroft, 378 F.3d 1143, 1153 (10th Cir. 2004) (holding IJ failed to
substantiate with support from the record his skepticism regarding the plausibility
of alien’s story about his treatment by Syrian authorities). But this was only one
of numerous bases cited by the BIA for affirming the IJ’s adverse credibility
determination, and petitioner fails to show that any of the IJ’s other findings of
inconsistences were not substantially reasonable. 1
Mr. Lin argues next that, even if there were inconsistencies in the evidence,
none of them “go to the heart of Mr. Lin’s asylum claim,” and they are therefore
too minor to support a finding that he was not credible. Pet. Opening Br. at 21.
1
Petitioner challenges other inconsistency findings by the IJ that he did not
raise in his BIA appeal. We do not address these unexhausted issues. See
Rivera-Zurita, 946 F.2d at 120 n.2.
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Petitioner’s argument has no merit. The REAL ID Act amended the Immigration
and Nationality Act to provide that an IJ may make an adverse credibility
determination based upon “the totality of the circumstances . . . without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.” 8 U.S.C. §§ 1129a(c)(4)(C) and
1158(b)(1)(B)(iii) (emphasis added). We acknowledged this new “congressional
directive” in Ismaiel, but did not apply it in that case because the alien filed his
application before the effective date of the REAL ID Act. 516 F.3d at 1206. As
petitioner acknowledges, yet seemingly ignores, the REAL ID Act amendment
applies to his asylum application, which he submitted after May 11, 2005. See id.at 1205 n.5.
Moreover, even before the REAL ID Act, this court had not adopted the
“heart of the asylum claim” approach to credibility determinations. See id. at
1205. We declined to apply such a rigid rule because
[e]xperienced litigators do not limit their challenges to adverse testimony to
matters at the heart of the case. Cross-examination often seeks to
undermine the witness’s credibility by probing into inconsistencies and
improbabilities regarding “incidental” matters. A witness who claims to
have had a conversation with a particular person may be disbelieved if he
cannot describe the house where the conversation allegedly occurred.
Defense counsel regularly confront law-enforcement officers with
omissions of information in their reports that do not concern the gist of the
alleged offense. We assume that these practices continue because jurors
are sometimes persuaded by the challenges. To be sure, one must be
sensitive to the pressures bearing on persons seeking to escape persecution
and make allowances for omissions of detail in their early accounts of what
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befell them. The amount of leeway to grant, however, must depend on the
specific circumstances.
Id. at 1205-06. Here the numerous inconsistencies relied upon by the IJ and the
Board are not limited to one aspect of the evidence. They include contradictions
within Mr. Lin’s own testimony, between his testimony and his wife’s affidavit,
and within the documents that he submitted. And the inconsistencies are not
limited to omissions of detail that were later supplemented; rather, they involve
contradictory details not satisfactorily explained.
Finally, Mr. Lin agues that the IJ’s demeanor finding was speculative and
not tied to any inconsistencies in the record. The Board deferred to the IJ’s
finding that petitioner’s lack of emotion in describing the ordeal of his wife’s
forced abortion, in contrast with his emotional response to being cross-examined
about inconsistencies in the evidence, leant further support to his adverse
credibility determination. “[A]n IJ may find a witness not to be credible because
of his or her testimonial demeanor.” Elzour, 378 F.3d at 1152-53; see also
8 U.S.C. § 1158(b)(1)(B)(iii) (providing credibility determination may be based
on applicant’s demeanor, while considering the totality of the circumstances).
The Board did not err in affirming the IJ’s adverse credibility determination
based, in part, on the IJ’s finding regarding petitioner’s testimonial demeanor. 2
2
Mr. Lin argues for the first time in his petition for review that the IJ’s
demeanor finding is speculative because “Mr. Lin could unconsciously be
(continued...)
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Mr. Lin was given the opportunity to explain the inconsistencies in the
evidence he presented, but failed to do so to the IJ’s satisfaction. We conclude
that the IJ’s and the BIA’s adverse credibility determinations, based upon those
inconsistencies and his testimonial demeanor, were substantially reasonable. See
Diallo v. Gonzales, 447 F.3d 1274, 1283 (10th Cir. 2006). Nor can we say that
the BIA’s conclusion that petitioner failed to satisfy his burden of proof to
establish eligibility for the relief he requested “was contrary to what a reasonable
factfinder would have been compelled to conclude.” Id. (quotation omitted).
Inadequate Translation
Mr. Lin argues that the Board erred in failing to grant a new hearing
because his testimony was not adequately translated. He points out instances in
the transcript where the interpreter asked for statements to be repeated or
clarified; where the interpreter failed to translate his responses; where he
appeared to not understand a question; and one incorrect translation that was
immediately corrected on the record. The BIA noted that petitioner did not raise
any objection to the interpreter or the translation during the hearing. Nor did he
bring any of these specific instances of translation problems to the attention of the
2
(...continued)
protecting himself from breaking down at the memory of his wife being dragged
away by cadres.” Pet. Opening Br. at 20. Once again, we do not have
jurisdiction to consider this unexhausted claim. See Rivera-Zurita, 946 F.2d at120 n.2.
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BIA in his appeal. Petitioner does not identify a single mistranslated word or
unresponsive answer in the transcript that bears upon the specific evidentiary
inconsistencies relied upon by the BIA in affirming the IJ’s credibility
determination. We conclude that Mr. Lin fails to establish that the translation of
his testimony at the hearing was constitutionally inadequate. See
Hadjimehdigholi v. INS, 49 F.3d 642, 650 (10th Cir. 1995) (“While the transcript
of the hearing indicates that the interpreter’s translation was often less than
perfect, there is no indication that petitioner was unfairly prejudiced or prevented
from presenting his case.”).
Conclusion
The petition for review is DENIED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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